Lately, I have been on a slow binge of watching the Walking Dead. Like most TV adaptations of graphic novels and comics, I am finding it very entertaining. I’m only in Season 3, so no one tell me . . . well, anything. As a result, I have been seeing a lot of images of corpses, both animate and inanimate. That reminded me that there is a specific provision in the Harmonized Tariff Schedule of the United States (“HTSUS”) for the importation of corpses.

The HTSUS is the statute (19 USC 1202) by which imported products are assigned rates of duty. It also sets out certain other regulatory requirements and exceptions. General Note 3(e), HTSUS, exempts from customs duties “corpses, together with their coffins and accompanying flowers.”

When goods arrive at a port in the U.S., they are usually subject to an “entry.” That is the process of legally entering the goods into the commerce of the United States and reporting that fact to Customs and Border Protection. The Customs Regulations provide that “all merchandise” is subject to entry unless exempted and lists HTSUS General Note 3(e) as an exemption. That seems confirm that corpses are not subject to entry requirements and not subject to duty. Or maybe not.

What if the “merchandise” to be imported is human heads, heads with necks, torsos, legs, arms, etc. taken from body donors? That is the question answered by Customs and Border Protection in its private letter ruling HQ H235506 (Jan.14, 2013). As customs rulings go, this is awesome. I don’t know how I missed it when it was issued.

The ruling starts with the ancient legal principle that there can be no commercial property interest in a dead body. Among other sources, Customs cited Chief Justice of the King’s Bench, Sir Edward Coke (1552-1634) for this legal proposition. At the same time, we all have a legal right to a decent burial, which puts a duty on survivors to properly care for the body of the decedent. For this, Customs cites a book I desperately want: The Law of Cadavers by Percival Jackson. All of which must be weighed against the right of the not-yet-dead to donate their body to science under the Uniform Anatomical Gift Act.

Getting to the substance of the issue, Customs looked at prior rulings in which it determined that cadavers imported for medical analysis are “corpses” for purposes of General Note 3(e). Customs has long had the practice of exempting corpses from duty and entry.

But this case involves parts of corpses. Counsel for the importers made the hand waving argument that it would be distasteful for CBP “to begin quibbling about the relative portions of human remains that are imported before qualifying for the GN 3(e)” exemption. Based solely on longstanding practice, a couple rulings, and “the weight of history,” Customs agreed. Given that the body parts will eventually be given a decent burial, Customs saw no reason to interfere with the disposition of the “merchandise.”

I have a couple of questions. First, is there a flipside to the distasteful task of deciding how much of a body should be treated as a corpse? Counsel for the importer seemed to be wondering how much can be removed from the deceased and still have it remain a corpse for purposes of the customs laws. Apparently, the answer is that an entire body can be removed leaving the head legally a “corpse.” What about a sample taken from a living human? This ruling says an arm or leg taken from a cadaver is a “corpse” and exempt from classification and entry. What about an arm or leg taken from a living person? Is that extremity now a corpse if imported into the United States. How would Customs know whether the “donor” was living or dead? Is the legal distinction administrable?

My second question has to do with the looming zombie apocalypse depicted in the Walking Dead TV series and presumably in the graphic novel. What if the unlucky victim of viral zombie reanimation happens to be visiting the Windsor Ballet at the time of his or her demise? When the undead start shuffling north toward the tunnel to Detroit, will there be a problem when it arrives at Customs? Is the walker a “corpse?” If so, it will not need to be entered as merchandise, and can continue walking.

If it is a person, it will need to clear immigration checks, which will be hard for the inarticulate shuffler lacking a passport. Customs might have to make accommodations under the Americans with Disabilities Act. Also, would the passport still be valid? It seem the correct “birthday” would now be the date of reanimation. I will leave that to the immigration lawyers.

Assuming the walker is no longer a person, Customs should treat it like an animal. If it is a dead but still walking animal, the best guidance ruling I can find (with minimal research) is HQ 975664, in which dead animals are treated as zoological specimens in HTSUS item 9705.00.00 (it’s duty free!). In this case, the dead animal is walking itself across the border, which raises questions of whether the walker is the “owner, purchaser, or consignee” of the merchandise (which is the walker). Since we know there can be no property interest in a dead body (or living person), the walker would need to be his or her own consignee to have the legal right to make entry of himself or herself. If it is alive but non-human, I suggest an HTSUS classification of 0106.11.00 as live primates, which is also duty free.

Finally, there are, of course, issues of admissibility. As Customs pointed out in the ruling that sparked this post, the importation of corpses is subject to regulation by the Centers for Disease Control. Given the plot of The Walking Dead, it seems pretty certain that the CDC would have something to say about this.

If anyone from Customs and Border Protection knows what would happen if an unaccompanied non-human primate showed up at the border crossing, please drop a comment below.

Also, if any readers have rulings to nominate for Ruling of the Week treatment, please note them in a comment. I am particularly interested in bizarre products, crazy food items, and restricted merchandise. I am aware of the numerous NSFW rulings on personal massage devices, so no need to reference those. I try and keep this a family and office friendly site.

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This guest post was written by Tracy Douglas, who is an attorney in the Illinois Governor’s Office. The opinions expressed in this article are solely those of the author and not those of the Governor’s Office.

Arrow season 2 includes a plot about Laurel Lance’s drug and alcohol addiction. This raises several legal issues about public employees and legal ethics.

1. Can Laurel be fired?

In “Blind Spot,” Laurel investigates Sebastian Blood. After finding drugs in her apartment, the cops arrest Laurel for drug possession (she’s been using her dad’s prescription drugs). When she’s released from police custody, she’s kidnapped, and it appears a cop was behind everything, not Blood. Assistant District Attorney Adam Donner tells her the drug charges were dropped, but she’s being fired because she has a drug problem. He tells her it’s not coming from District Attorney Spencer but from him because he hired her. Whether her firing is proper depends on if Laurel had a right to notice and a hearing.

In certain situations, public employees have a right to notice of termination and a hearing before they are terminated. This is guaranteed by the 14th amendment’s due process clause, which protects government employees from being fired without notice and a hearing if they have a protected property interest and can only be dismissed for cause. Bd of Regents v. Roth, 408 U.S. 564, 577, 578 (1972); Perry v. Sindermann, 408 U.S. 593, 602-603 (1972). In this analysis, it must be determined if the public employment at issue is a protected property interest. Roth at 571. A property interest can be created by “existing rules or understandings that stem from an independent source such as state law.” Roth at 577. Further, where a person’s reputation is at stake, notice and an opportunity to be heard are important. Roth at 573. A public employee who can only be dismissed for cause is entitled to a limited pre-termination hearing to be followed by a more extensive post-termination hearing. Cleveland Bd. Of Ed. v. Loudermill, 470 U.S. 532, 545-546 (1985). Therefore, to be a proper firing, Laurel needs notice and a hearing if she has a property interest in her job. To have a property interest, reputation can be looked at, but state law must be examined.

Arrow is not clear where Starling City is located. The DC comics have shown it as a stand-in for San Francisco or Seattle. For this discussion, California, Washington and Illinois law will be used to see how public employment and legal ethics are treated by different states. In Washington and California, Laurel would have more job protections as a county employee than in Illinois.

In California and Washington, Laurel has a protected property interest established by county rules and possibly the collective bargaining agreements. This means she has a right to notice and an opportunity to be heard. County attorneys in San Francisco county and King County, Washington (Seattle) are represented by unions. The collective bargaining agreements might include more protections than the county rules. In the absence of the labor agreement, her employment is protected by county civil service rules. She would have notice of her termination and a right to a hearing before she is officially terminated. San Francisco County Civil Service Rule 122.1.3; 122.1.4; King County Code 3.12.270. This satisfies the 14th amendment’s due process requirement. So, if Starling City is in a state with laws like California and Washington, then Donner could not fire Laurel without a written notice and a hearing. His informing her may be an informal hearing under Loudermill, but she has a right to a fuller hearing. This is important because under Roth her reputation is at stake and she needs the chance to tell her side.

On the other hand, if Starling City is in a state like Illinois, Laurel may not have those protections. The state’s attorney has complete control over the office, including the ability to hire and fire employees. 55 Ill. Comp Stat. Ann. § 5/3-9006 (West 2014). Laurel may have an argument based on Roth and Sindermann that she has a protected property interest in her job. However, both Roth and Sindermann talk about public employees who are protected from being fired without cause. Without a union or contract, Illinois assistant state’s attorneys are at-will employees, and that means Laurel likely won’t have a right to notice and a hearing because firing is not limited to for cause. She could claim a right because her reputation is at stake, but the firing seems proper under Illinois law.

II. Would a state bar investigation make her unemployable?

In “Tremors,” Laurel refuses to seek help through counseling, and she finds out from her colleague, Joanna, that she’s under investigation by the state bar. It is looking in to her fitness to practice based on her arrest. It’s not clear how much time has passed from her firing, so it’s not clear if this is an initial investigation or if charges have been filed. Joanna’s partner sits on the disciplinary committee of the state bar, and he found out Laurel was under investigation when they thought about hiring her. This is probably its own violation because if it is not public information yet, then he is revealing confidential information. Joanna says that while the investigation is out there, they can’t hire her. Usually, only the most egregious violations of legal ethics result in disbarment. For other cases, there are suspension and censure punishments. Laurel’s actions may have violated professional rules, but punishment depends on the severity of the violation. If the investigation is beyond the beginning stages, then Laurel will know about it. If she knows about it, then she should tell potential employers. While there is an ongoing investigation, she would likely be unemployable unless the person is a friend doing her a favor or doesn’t care about the bad optics of hiring someone under investigation. State legal ethics are overseen by the courts, but the process varies.

In California, the state bar court oversees the rules of professional conduct and disciplinary matters. Cal Bus. & Prof. §§ 6076, 6077 (West 2014). Under the California rules, lawyers face discipline if they “intentionally, recklessly, or repeatedly fail to perform legal services with competence” or commit an “act involving moral turpitude, dishonesty or corruption.” Cal. Rules of Professional Conduct, Rule 3-110; Cal. Bus. & Prof. § 6106. When a lawyer is charged with a crime, the bar must be notified, and it could start its own investigation even when the charges are dropped. Cal. Bus. & Prof. § 6101; California Rules of the State Bar, Title 5, Rule 2402. Any of these might cover what Laurel does in the show. What’s problematic about this situation is that Laurel seems to not know about the investigation. It’s possible that Laurel would not know about it if it’s at the preliminary stage, before she’s been notified. However, the lawyer who is being investigated would eventually be notified when charges are filed, and that would be public information. California Rules of the State Bar, Title 5, Rule 2403; Rule 2604. So, being investigated by the bar and being rendered unemployable rings true, but she would probably know about the investigation.

Washington and Illinois have similar Rules of Professional Conduct. Washington’s misconduct rule says that misconduct includes “commit[ing] a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Washington Rules of Professional Conduct Rule 8.4(b); Illinois Rules of Professional Conduct Rule 8.4(b) (2010). Washington statute provides grounds for disbarment, including “any act involving moral turpitude, dishonesty, or corruption” and “gross incompetency in the practice of the profession.” Wash. Rev. Code Ann. 2.48.220 (West 2014). A criminal conviction is not required to begin disciplinary action. Washington Rules of Professional Conduct Rule 8.4(i). Washington’s rules also have a catchall “engage in conduct demonstrating unfitness to practice law.” Washington Rules of Professional Conduct 8.4 (n). In Illinois, however, the rules drafters clarified that lawyers are “professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.” Illinois Rules of Professional Conduct Comment 2 (2010). Laurel could face an investigation for any of these, especially if her arrest was reported to the bar and an investigation began. It’s possible that her arrest, even though the charges were dropped, would reflect adversely on her fitness as an attorney. If she was reported, an investigation would begin.

Washington and Illinois have similar investigation practices. The Washington Disciplinary Counsel investigates complaints against lawyers, and Laurel would have an opportunity to respond during the investigation. Washington Rules for Enforcement of Lawyer Conduct (ELC) 5.3 (a)(b) (2014). In Illinois, it is the Attorney Registration and Disciplinary Commission, which investigates when it receives a complaint and may give the accused an opportunity to respond. IARDC Rule 53. If sent to a hearing, then the attorney would receive notice of the filing of charges. ELC 10.3 (a) (1)(2) (2014); IARDC Rule 55. Complaints are also published on the ARDC’s website, so a potential employer who searched the attorney’s name would be able to find the complaint Like California, the point about being unemployable seems correct, but not knowing seems wrong unless it’s in the very beginning.

Substance abuse is a real problem among lawyers. Most states have Lawyer Assistance Programs to help deal with these problems. The Washington State Bar Association has one, and Illinois law provides one ran by the Supreme Court. 705 Ill. Comp. Stat. Ann. § 235/1. California seems to have a unique program, the Attorney Diversion and Assistance Program. Cal. Bus. & Prof. §§ 6230, 6231. The State Bar can refer the attorney under investigation to this program, but the attorney will be on either inactive status or have practice restrictions, which will be lifted when his time in the program is over. Cal. Bus. & Prof. § 6232.

III. Can she get her job back?

In “Birds of Prey,” Donner invites Laurel to prosecute Frank Bertinelli. Laurel mentions the bar investigation is ongoing, but Donner says he has a friend on the committee who can fix it. By saying this, he commits his own ethics violation in Washington and Illinois by “stat[ing] or imply[ing] an ability to influence improperly a government agency or official.” Rule 8.4 (e) Given that he was willing to put one criminal on trial in the hopes of getting another criminal to appear, it’s not surprising that he would commit an ethics violation. This is questionable because there is usually more than one person on the committees that hear lawyer complaints. He would need to convince others to vote with him. However, it turns out to be a plot by Donner to catch the Huntress, Frank’s daughter. The Huntress comes, takes hostages in the courthouse, and is eventually captured. In the aftermath, DA Spencer tells Laurel that Donner wasn’t authorized to rehire her, but Laurel manages to keep her job by pointing out that Spencer wouldn’t want the fact that Donner was behind the hostage crisis to get out. Whether this is realistic depends on the rules governing rehiring.

If Starling City is in a state with laws like California and Washington, then this part of the plot would not be realistic unless Laurel had gone through a due process hearing to get her job back after her termination. In San Francisco county, a termination could affect the ability to be rehired. San Francisco County Civil Service Rule 122.1.4. If she were to reapply, she would have to go through the examination process after completing a year of service outside the county, and her appointment would have to be approved by the Human Resources Director. San Francisco County Civil Service Rule 122.3. Donner would not have the ability to rehire her. If she was properly fired and didn’t challenge it, then she would not be able to be rehired quickly given these rules.

Similarly, in King County, Washington, prosecuting attorneys are subject to a competitive process because they are not career employees. KCC 3.12.090. Laurel would not be able to be rehired unless she either challenged her dismissal or went through the competitive process again. Since the episode shows Donner offering her the job without a competitive process and without a challenge of the dismissal, then getting the job back quickly is not realistic. Depending on who is the appointing authority within the King County prosecuting attorney’s office, Donner may have had the ability to rehire her. But the process wouldn’t be as easy as shown on the show.

On the other hand, if Starling City is in a state like Illinois, then she would be able to get her job back without going through a competitive process because state’s attorneys control their offices. The state’s attorney is in charge of the office and can hire and fire assistants. 55 Ill. Comp. Stat. Ann. § 5/3-9006. However, a bar investigation would be a hindrance because it would reflect poorly on the state’s attorney. Donner said he hired her in the first place, so Laurel might have an argument that he had apparent authority through agency principles to re-hire her. In a state like Illinois, getting rehired quickly is more believable even if unlikely given the investigation.

IV. Conclusion

Arrow season 2 looks at Laurel’s professional descent and drug addiction. It skips some steps that would be required if it took place in some states (notice and a hearing before being fired, notice of an investigation, rehiring steps). These could have been mentioned, but not shown, if they were required, depending on state law. The writers may have had to ignore some things and not show them because it is not the main plot. The beauty of not defining which state Arrow takes place in is that the law might not be wrong because state law differs on this topic. In the real world, though, she would probably not be able to get her job back that easily, assuming her firing was proper. If the state bar investigation is beyond the initial phase, Laurel would know about it and would not find out from a colleague. Unless the person hiring her is okay with hiring someone under investigation, then the investigation would render her unemployable. And Donner should not imply that he can fix it with a friend on the committee. As a device to show character growth and continuing corruption in Starling City, it works.

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(This guest post was written by unapologetically geeky gamer lawyer Angelo Alcid, who writes about real-life video game law issues at his blog The Geek Law Journal.)

Since the release of Tomb Raider in 1996, millions of people have been happily raiding tombs as intrepid archaeologist Lara Croft; however, back in April of last year, Mark asked: how legal is anything Lara Croft does? (Note: Since I am a U.S. attorney, this analysis will be based on prevailing U.S. law. Ms. Croft’s fate in the courts of her home country of England is best left to experts across the pond.)

At the time of this writing, 124 nations are signatories to the treaty, including almost every nation that Lara Croft has visited during her various adventures (except for Tibet and Thailand). The United States ratified the UNESCO 1970 Convention and implemented it with the Convention on Cultural Property Implementation Act (CIPA), codified in 19 U.S.C. §§ 2601-13.

That being said, the UNESCO 1970 Convention and CIPA only come into play if the items in question were in fact 1) cultural artifacts, and 2) stolen or illegally exported. While UNESCO provides model provisions regarding state ownership of cultural objects, such model provisions are not themselves legally binding, and it is up to each member nation to implement laws concerning the ownership and exportation of cultural artifacts.

The Raiding of Foreign Tombs

Whether Lara Croft could face liability for the actual act of “raiding” would depend upon the local laws governing the tombs in question. The games are notably silent as to Lara having the proper permits to conduct her excavations, but it seems safe to assume that her tomb raiding is being done without the permission of the local governments and would almost certainly subject her to civil and/or criminal liability. (To be fair to the game developers, a cutscene or level wherein Lara visits a Peruvian government building to file for permits might not have made for the most exciting game.)

The question of whether or not Lara’s tomb raiding are illegal in the countries in which the tomb raiding is rather straightforward – the answer is almost certainly yes, as in each case she goes in without government sanction, guns blazing, often resulting in the complete destruction of the tomb in question.

For example, in Egypt, Article 6 of Law 117 states that “[a]ll antiquities are considered to be public property . . . It is impermissible to own, possess or dispose of antiquities except pursuant to the conditions set forth in this law and its implementing regulations.” Furthermore, Article 41 states that anyone who “unlawfully smuggles an antiquity outside the Republic or participates in such an act shall be liable to a prison term with hard labor and a fine of not less than 5,000 and not more than 50,000 pounds.” There are prison terms and fines outlined for removing an antiquity from its place, for transporting it outside of Egypt without express government permission, and for defacing artifacts and monuments, all of which Lara does during her brief time in Egypt looking for the final piece of the Scion in the first Tomb Raider game.

Rather than list off the innumerable fines and jail terms Lara would no doubt face in the various nations from which she retrieves artifacts, instead I will examine the legal consequences Lara may face after her adventures are concluded and she brings these artifacts home to hang up on her wall. (Lara Croft’s official home is in England; however, as previously stated, I will be analyzing her situation in the context of U.S. law. I would welcome a British lawyer’s perspective on how Lara would fare over there.)

National Stolen Property Act

In the U.S., a person may be subject to both civil and criminal liability for the sale and transport of illegally exported cultural artifacts. While Lara doesn’t ever actually sell any of the artifacts she finds, the fact remains that she is transporting all of these artifacts across state/national borders all the time, with many of them winding up in her personal collection at home. (For example, she has the Ark of the Covenant just sitting in the main hall of her mansion.)

The National Stolen Property Act (NSPA) prohibits the transportation “in interstate or foreign commerce [of] any goods, . . . of the value of $5,000 or more,” with knowledge that such goods were “stolen, converted or taken by fraud.” 18 U.S.C. § 2314. Enacted in 1948, the NSPA was originally intended to aid states in their pursuit of thieves, as the states’ ability to prosecute thieves was often limited when the thieves (or the property) would cross state lines.

United States v. McClain

However, in addition to interstate commerce, the NSPA also specifically mentions foreign commerce, and as a result it has been applied to the illegal import of artifacts stolen from foreign nations. In United States v. McClain, the defendant was prosecuted under the NSPA for illegally importing several pre-Columbian artifacts from Mexico.

On appeal, the defense argued that the NSPA could only be applied if the artifacts were “stolen” as defined by the NSPA, and that the term “stolen” only covers “acts which result in the wrongful deprivation of rights of ‘ownership’ as that term is understood at common law. United States v. McClain, 545 F.2d 988, 994 (5th Cir. 1977). In other words, he couldn’t have stolen them if they weren’t officially owned by anyone.

The court reasoned that an explicit declaration of ownership by the government would be sufficient to consider the illegally exported artifacts “stolen” under the NSPA. (Without such an explicit declaration of ownership, prosecuting people in the U.S. for illegally exporting artifacts from foreign nations would simply amount to the United States enforcing the laws of other nations for them.)

While the respondents argued that Mexico had passed laws protecting their archaeological interests dating back to 1897, the court did not find a law specifically declaring ownership over the type of artifacts in question until 1972, when Mexico passed the Federal Law on Archaeological, Artistic and Historic Monuments and Zones. 312 Diario Oficial 16, 6 de mayo de 1972. Article 27 states that “[a]rchaeological monuments, movables and immovables, are the inalienable and imprescriptible property of the Nation.”

Because court could only establish that Mexico had officially declared its ownership interest over the artifacts in 1972, and it could not be established precisely when the defendant had exported the artifacts, the defendant was eventually acquitted of all but the conspiracy charges.

The McCain decision was cited 25 years later, in Unites States v. Schultz, 333 F.3d 393 (2003), in which the defendant was also prosecuted under the NSPA for the receipt of stolen Egyptian antiquities. In Schultz, the court looked to a law passed in Egypt (“Law 117”) that declared all antiquities found in Egypt after 1983 to be the property of the Egyptian government, and upheld the defendant’s conviction. Schultz was sentenced to 33 months in prison and a fine of $50,000, and nearly all of the artifacts he received were returned to Egypt.

Conclusion

On top of all the possible fines and jail time Lara Croft would likely face in each nation she visits in her tomb-raiding adventures, for each artifact she brings home she may also be prosecuted by the U.S. government for the transport of stolen goods under the National Stolen Property Act as long as the artifact’s nation of origin has enacted a law officially declaring state ownership of such artifacts. Furthermore, all of the various artifacts she retrieves will likely be returned to their nations of origin under the UNESCO 1970 Convention and CIPA.

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I promise I’m not dead! I started a new job at the Washington University in St. Louis Center for Empirical Research in the Law a few weeks ago, and it has kept me very busy. I hope to find a spare few hours to write up a proper post soon. Topics that people have asked about include:

New developments in She-Hulk, particularly with regard to ethical issues surrounding the legal practice of “Matt Rocks”

All kinds of questions about Multiple Man in general

A follow-up to She-Hulk #1: would Walters have been liable for breaking the firm’s table during her resignation?

A fascinating question about the legal liability faced by Dennis Nedry in Jurassic Park: by shutting down the park’s systems, would he have been guilty of murder, manslaughter, or something else? (assuming US law applied on Isla Nublar)

The accuracy of a certain ethical disciplinary action taken against Laurel Lance on Arrow (vague in case it’s a spoiler; I haven’t been following Arrow very closely lately)

Thor: God of Thunder #21: Roxxon sues Thor and announces its intention to seek restraining orders against him worldwide in response to the alleged destruction of various Roxxon facilities by Thor

From video games: just how legal is anything Lara Croft does?

And much more!

I hope to address these soon. In the mean time, if any readers who happen to be legal professionals or enterprising law students would like to take a crack at these, I would be happy to publish guest posts. Bonus points if someone wants to write about the Jurassic Park question and compare US and Costa Rican criminal law.

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Guardians of the Galaxy was a really terrific movie, and I highly recommend it. As with many of the more cosmic Marvel storylines there isn’t much more for me to say about it than that.

I’ve continued to follow She-Hulk with similar results. The last couple of issues have been good (albeit a little bit wheel-spinning in terms of the larger story arc), but there haven’t been any big legal issues that leapt off the page at me. Still, it’s a good book. The writer, Charles Soule, has indicated that “There’s a bunch happening in issues 8-10 I think [Law and the Multiverse will] have a field day with”, so I’m looking forward to that in a couple of months.

So, back to the backlog of questions from readers. Look for more (and more substantial) posts in the coming weeks.

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This is the eighth post in the Law and the Multiverse Retcons series, in which I discuss changes in the law (or corrections in my analysis) that affect older posts. Or older retcon posts, since not longer after I wrote this Orphan Black Retcon I saw Season 2 Episode 5, which further complicated matters. Soon after that I received an email asking about it, and I knew I would have to write the first Retcon Retcon. Spoilers ahead!

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Law Comics is a new webcomic series created by Julia Powles and illustrated by Ilias Kyriazis. As described by Powles in this wired.co.uk article, it’s “a project steered by non-boring lawyers to render iconic legal cases in full-colour glory, accompanied by short, authoritative, whimsical texts. The aim is to animate the magnificent stories of law to engage and empower the curious public.”

The first issue of Law Comics, Alice in Patent Land, is about patentable subject matter, which is an issue near and dear to me. I approve of Powles’s explanation of the topic and the recent Supreme Court case of Alice v. CLS Bank. Being so close to the issue it’s a little hard for me to say how approachable the comic makes it to those who aren’t, but I think it does a good job. And certainly I approve of using the medium of comics to discuss the law. I look forward to the next issue.

(As far as I can tell Law Comics doesn’t have its own site yet, but the comic is available at the wired.co.uk article and the Alice in Patent Land link to Patently-O.)

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This is the sixth post in the Law and the Multiverse Retcons series, in which I discuss changes in the law (or corrections in my analysis) that affect older posts. Or in this case the book The Law of Superheroes as well as some olderposts about drafting superheroes.

The impetus for this Retcon came from a letter (that’s right, a real, physical letter!) I received from a doctor in Tennessee. She wrote:

You doubt that there could be a superhero draft, because of the intrinsic unfairness. However, there was a specific doctors’ draft during World War II, Vietnam, etc., which could serve as a model for [conscripting] mutants and resident aliens.

Physicians could be and were drafted despite being middle-aged, 4F (the thought being that if you could get to your office, you could serve), or having already served.

Although I attended medical school soon after the institution of the volunteer army, this was still a source of fearful discussion amongst my male classmates and professors.

The doctor draft was indeed a real thing, and it extended well into peace time. It was expressly held constitutional by the Fifth Circuit in Bertelsen v. Cooney, 213 F.2d 275 (5th Cir. 1954):

Neither is appellant entitled to any relief under the Fifth Amendment because, unlike the Fourteenth Amendment, the Fifth contains no equal protection clause. In order to invoke the Fifth Amendment to secure relief against inequality, appellant must show that the inequality practiced against him has been so flagrant as to amount to a denial of due process, and this he has not done.

The Act extends to all doctors and dentists under the age of 50, and to ‘allied specialist categories’, which by the express terms of the Act includes, but is not limited to, veterinarians, optometrists, pharmacists and osteopaths, imposing upon them all alike the obligation of military service when called by the President under the terms of the Act. In our opinion such a classification satisfies the requirements of the Fifth Amendment.

Bertelsen, 213 F.2d at 277. The court also denied relief under the Thirteenth Amendment prohibition on involuntary servitude, as is typical in draft cases.

However, it is arguable that a draft of superpowered individuals could be such a flagrant inequality as to violate Fifth Amendment due process. This would be especially likely if Congress picked specific superpowered individuals rather than superpowered individuals as a class.

In fairness to us, however, I don’t think we actually concluded that a superhero draft would be unlikely to pass constitutional muster. To quote from The Law of Superheroes:

… Congress has a lot of authority here. It certainly has the ability to authorize and fund a superhuman branch of the military.

But does it have the ability to force superhumans to register and work for the government? Maybe. Conscription is not directly addressed by the Constitution, but it has long been held that conscription is part of Congress’s power to raise armies, and the Supreme Court tends to make unusually strong statements of congressional power when faced with this particular issue.

…

But directly targeting specific individuals raises due process implications far beyond the skewed drafts of the nineteenth and early twentieth centuries. The draft is a pretty huge imposition upon civil rights, and while it is an imposition Congress is permitted to make, the Supreme Court might balk at permitting Congress to go so far as to shed even the pretense of fairness.

…

In the case of superheroes, however, it may well be that the courts would permit such an action, as the draft power is pretty sweeping, and the courts have not really displayed any willingness to limit that power before. If Congress thinks it needs the assistance of a uniquely capable citizen to fight a war, the courts would most likely not object.

So although the doctor draft and the associated cases are a notable gap in our research, I don’t think our correspondent disagrees with us as much as it might appear. Nonetheless, I felt the letter was thoughtful and deserved the full Retcon treatment.

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On this blog we discuss fictional scenarios; nothing on this blog is legal advice. No attorney-client relationship is created by reading the blog or writing comments, even if the authors write back. The authors speak only for themselves, and nothing on this blog is to be considered the opinions or views of the authors’ employers.